2020 Georgia Code
Title 44 - Property
Chapter 5 - Acquisition and Loss of Property
Article 2 - Conveyances
§ 44-5-35. Apportionment of Price for Deficiency in Number of Acres; Rescission

In a sale of lands, if the purchase is per acre, a deficiency in the number of acres may be apportioned in the price. If the sale is by the tract or the entire body, a deficiency in the quantity sold cannot be apportioned. If the sale is by a quantity of acres with the qualification "more or less" added, any deficiency is not apportionable unless the deficiency is so great as to constitute a willful deception or mistake amounting to fraud. In this event, the purchaser may demand a rescission of the sale or an apportionment of the purchase price.

(Orig. Code 1863, § 2598; Code 1868, § 2600; Code 1873, § 2642; Code 1882, § 2642; Civil Code 1895, § 3542; Civil Code 1910, § 4122; Code 1933, § 29-201; Ga. L. 1983, p. 3, § 33.)

- For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981).

ANALYSIS

• General Consideration
• Applicability
• Sale by Acre
• Sale by Tract
• Quantity Specified as "More or Less"
• Deception or Fraud

There is no room for holding that this statute modified the previous existing rule. Walton v. Ramsey, 50 Ga. 618 (1874); Finney v. Morris, 116 Ga. 758, 42 S.E. 1020 (1902) (see O.C.G.A. § 44-5-35).

- Statute deals with matter of deficiency of quantity of land under three sets of circumstances: (1) where the sale is made by the acre; (2) where it is by the entire tract or body; (3) where the quantity is specified as "more or less." Kendall v. Wells, 126 Ga. 343, 55 S.E. 41 (1906); Marchman v. Security Loan & Abstract Co., 45 Ga. App. 625, 165 S.E. 884 (1932) (see O.C.G.A. § 44-5-35).

Cited in Rigdon v. Barfield, 194 Ga. 77, 20 S.E.2d 587 (1942); Farrar v. Vanpelt, 96 Ga. App. 244, 99 S.E.2d 738 (1957); U.S. Life Title Ins. Co. v. Hutsell, 164 Ga. App. 443, 296 S.E.2d 760 (1982).

Applicability

Bulk sale of fertilizer.

- Statute does not apply to a sale in bulk of fertilizer. Navassa Guano Co. v. Commercial Guano Co., 93 Ga. 92, 18 S.E. 1000 (1894) (see O.C.G.A. § 44-5-35).

- Statute does not apply to a sale of timber growing upon land, when there is no deficiency in the quantity of land, but only a misrepresentation as to quantity and character of timber. Martin v. Harwell, 115 Ga. 156, 41 S.E. 686 (1902) (see O.C.G.A. § 44-5-35).

- When a certain tract of land is described in a contract of sale by definite boundaries, and it later appears that the vendor has no title to a portion of the tract contained within the described boundaries, this is a defect in the vendor's title rather than a deficiency in quantity. Lawton v. Byck, 217 Ga. 676, 124 S.E.2d 369 (1962), later appeal, 218 Ga. 858, 131 S.E.2d 176 (1963).

When a certain tract of land was described in a contract of sale by definite boundaries, and it later appeared that the vendor had no title to a portion of the tract contained within the described boundaries, this was a defect in the vendor's title, as contemplated by former Code 1933, § 29-202 (see O.C.G.A. § 44-5-36), rather than a deficiency in quantity, as contemplated by former Code 1933, § 29-201 (see O.C.G.A. § 44-5-35). Lunsford v. King, 132 Ga. App. 749, 209 S.E.2d 27 (1974); Etheridge v. Fried, 183 Ga. App. 842, 360 S.E.2d 409 (1987).

- When a purchaser of land sought to have delivered up and marked as "satisfied" certain notes given by the purchaser for deferred payments, on the ground that title to certain of the land so purchased had failed, the issue as to whether or not it was a sale by the tract or by the acre was not involved; in such a case the applicable law was that contained in former Code 1933, § 29-202 (see O.C.G.A. § 44-5-36) and not in former Code 1933, § 29-201 (see O.C.G.A. § 44-5-35). Miller v. Minhinnette, 185 Ga. 490, 195 S.E. 425 (1938).

- When a purchaser under a bond for title does not hold possession of all the land described in the bond, and is sued on notes representing the unpaid purchase price, the purchaser is permitted to set up as a defense the fact that the purchaser holds possession of only a part and that the vendor cannot make title to the other part, and that, as a consequence of the defect in the title, the purchaser is entitled to a reduction in the purchase price; this statute having no application. Pope v. Williams, 70 Ga. App. 834, 29 S.E.2d 808 (1944) (see O.C.G.A. § 44-5-35).

- Vendee in "undisturbed possession" of lands cannot defeat an action by the vendor for the purchase price of the lands on the ground that the vendor did not have good title to such lands. McConnell v. White, 91 Ga. App. 92, 85 S.E.2d 75 (1954).

- Contract of sale of a tract of land described therein as measuring a certain number of feet in width and in depth binds the obligor to make title to the entire tract so described, and if the obligor has no title to a portion of the land, this is a material breach of the contract, entitling the purchaser to a rescission of the contract of sale at the purchaser's election. Coppage v. King, 96 Ga. App. 192, 99 S.E.2d 541 (1957).

- When land described by metes and bounds is sold and the vendor has no title to a part of the land, the vendee, if the vendee elects to take the remaining portion to which the vendor has title, can have an abatement of the price proportionate to the value of that which the vendor cannot convey. O'Farrell v. Willoughby, 171 Ga. 149, 154 S.E. 911 (1930).

Sale by Acre

Whether sale is by acre or tract determined by examining instrument.

- All preliminary negotiations must be said to be merged in the deed which is accepted by the purchaser, and whether a sale was made by the tract must be determined from an examination of the instrument. Kytle v. Collins, 67 Ga. App. 98, 19 S.E.2d 754 (1942).

- Proper solution of the question whether a sale of land is by the tract or by the acre depends upon whether the quantity of land is of the essence of the contract. If, after a description of a tract of land which otherwise identifies the premises either by metes and bounds or by monuments, there appears a statement of the quantity of the land as so many acres more or less, such a sale would be a sale by the tract, but where in a conveyance the usual reference to the land as "all that tract or parcel of land," etc., or "a tract of land" is omitted and the first statement as to the land is a covenant to sell a definite and exact number of acres of land, neither more nor less, the description thereafter following not stating any metes or bounds, it must be adjudged that the quantity of land being first mentioned is of the essence of the contract. Roberts v. Groover, 156 Ga. 386, 119 S.E. 696 (1923).

When a deed is so worded as to show that the number of acres is made the essence of the contract, it will be taken as evidencing a sale by the acre and not by the tract. Kytle v. Collins, 67 Ga. App. 98, 19 S.E.2d 754 (1942).

- Description of land which merely enables one to find and measure the number of acres precisely defined and fixed by the contract cannot defeat the covenant to sell an exact number of acres. Roberts v. Groover, 156 Ga. 386, 119 S.E. 696 (1923).

- When deed showed a sale of land by the tract, under the facts as disclosed by the record, parol evidence, to the effect that the land was offered for sale and was bid off by the purchaser at a named price per acre, was incompetent and insufficient to show that the sale was by the acre. Kytle v. Collins, 67 Ga. App. 98, 19 S.E.2d 754 (1942).

- In a sale by number of acres, the question of fraud is immaterial to recovery. Kytle v. Collins, 67 Ga. App. 98, 19 S.E.2d 754 (1942).

- Generally, if land is sold by the acre, an apportionment for a deficiency is to be made proportionate to the number of acres in the deficiency. Kendall v. Wells, 126 Ga. 343, 55 S.E. 41 (1906).

- When it is certain that appellant bargained for and paid $440.00 per acre for 718 acres precisely, not "more or less," based on a calculation of acres and not on the description of a tract, and appellant did not get 718 acres in appellant's purchase, then obviously a mistake was made; and since appellant bargained and paid for 718 acres, appellant is entitled to apportionment under O.C.G.A. § 44-5-35. Boswell v. Bryans, 159 Ga. App. 724, 285 S.E.2d 74 (1981).

- Doctrine of caveat emptor applies to administrators' sales. Therefore, the provision of this statute for apportionment of the purchase price on account of a deficiency of acreage in a sale of land where the purchase is by the acre has no application to an administrator's sale. Greer v. McDonald, 141 Ga. 309, 80 S.E. 1002 (1914); McKinnon & McCarthy v. Sheffield, 149 Ga. 219, 99 S.E. 855 (1919) (see O.C.G.A. § 44-5-35).

In sale of timber upon land sold per acre, deficiency in acres may be apportioned to the price, and this is true though both parties have an equal opportunity to judge as to the number of acres. Martin v. Peddy, 120 Ga. 1079, 48 S.E. 420 (1904).

For cases where sale of land by acre found, see Strickland v. Hutchinson, 123 Ga. 396, 51 S.E. 348 (1905); Bentley v. Barrett, 26 Ga. App. 527, 106 S.E. 815 (1921); Roberts v. Groover, 156 Ga. 386, 119 S.E. 696 (1923).

Sale by Tract

"By tract or entire body" defined.

- Sale "by the tract or entire body," as the words are used in this statute, means where a tract or body of land is sold as such, and not at so much per acre according to the acres which it may contain. Thus, if a tract of land should be described in a bond for title by metes and bounds, or by some descriptive name or designation which would describe it as a whole, and the number of acres should merely be stated as an additional description, this would be a sale by the tract or entire body. Turner v. Rives, 75 Ga. 606 (1885); Walker v. Bryant, 112 Ga. 412, 37 S.E. 749 (1900); Strickland v. Hutchinson, 123 Ga. 396, 51 S.E. 348 (1905) (see O.C.G.A. § 44-5-35).

- If the sale is intended to be in gross, the authorities are unanimous in holding that the mere mention of acres, or of feet, after certain other descriptions, such as metes and bounds, is not a covenant as to the quantity to be conveyed. Land Trust Co. v. Morgan, 22 Ga. App. 388, 95 S.E. 1006 (1918); Holliday v. Ashford, 163 Ga. 505, 136 S.E. 524 (1927), later appeal, 169 Ga. 237, 149 S.E. 790 (1929).

- It is only when there is a deficiency in the quantity of land sold that it becomes material to inquire whether or not it was a sale by the tract. Washington Mfg. Co. v. Wickersham, 201 Ga. 635, 40 S.E.2d 206 (1946).

- If sale of land is by the tract, deficiency in the acreage cannot be apportioned. Baker v. Corbin, 148 Ga. 267, 96 S.E. 428 (1918); Appleby v. Tomlinson, 31 Ga. App. 771, 122 S.E. 93 (1924).

Deficiency apportioned when fraud is shown. Finney v. Morris, 116 Ga. 758, 42 S.E. 1020 (1902); White v. Adams, 7 Ga. App. 764, 68 S.E. 271 (1910); Milner v. Tyler, 9 Ga. App. 659, 71 S.E. 1123 (1911).

If a sale of land is by the tract rather than by the acre, a deficiency in the acreage cannot be apportioned in the absence of actual or moral fraud on the part of the vendor. Bivins v. Tucker, 41 Ga. App. 771, 154 S.E. 820 (1930).

In a sale of land by the tract, and not by the acre, a deficiency in the number of acres specified, there being no fraud alleged, is no ground for an apportionment of the purchase price. Security Loan & Abstract Co. v. Marchman, 41 Ga. App. 808, 154 S.E. 822 (1930).

For cases when sale by tract found, see Longino v. Latham, 93 Ga. 274, 20 S.E. 308 (1893); Maxwell v. Willingham, 101 Ga. 55, 28 S.E. 672 (1897); White v. Adams, 7 Ga. App. 764, 68 S.E. 271 (1910); Rawlings v. Cohen, 143 Ga. 726, 85 S.E. 851 (1915); Mayo v. Bowen, 26 Ga. App. 539, 106 S.E. 596 (1921).

Quantity Specified as "More or Less"

Sale of land containing "approximate" number of acres sale in gross.

- Sale of all the sawmill timber on a bounded tract of land containing "approximately 100 acres in timber" is a sale of timber in gross. Kendall v. Wells, 126 Ga. 343, 55 S.E. 41 (1906).

Clause "approximately 100 acres" means the same as 100 acres, "more or less". Stockburger v. Brooker, 33 Ga. App. 676, 127 S.E. 663 (1925).

- Contention that any shortage in land sold is taken care of by the phrase "more or less" in the acreage description is without merit since this statute does not apply to sales of land by metes and bounds; further, description by metes and bounds controls over the quantity specified in the deed. McConnell v. White, 91 Ga. App. 92, 85 S.E.2d 75 (1954) (see O.C.G.A. § 44-5-35).

- Deed which described the premises, giving the boundaries and estimating the area as containing a certain number of acres, "more or less," conveys all the land embraced in the calls, although the acreage may exceed the estimate. McDonald v. Taylor, 200 Ga. 445, 37 S.E.2d 336 (1946).

Words "more or less" do not give a superior right of apportionment for a deficiency than exists without those words. To so hold would reduce the provisions of this statute to an absurdity. Marchman v. Security Loan & Abstract Co., 45 Ga. App. 625, 165 S.E. 884 (1932) (see O.C.G.A. § 44-5-35).

Words "more or less" protect the seller against a small deficiency when there is an approximation to the quantity of acres mentioned. Kendall v. Wells, 126 Ga. 343, 55 S.E. 41 (1906).

- In a conveyance of land by the tract the qualifying words "more or less" will cover any deficiency not so gross as to justify the suspicion of willful deception or mistake amounting to fraud; in this event, the deficiency is apportionable. Perkins Mfg. Co. v. Williams, 98 Ga. 388, 25 S.E. 556 (1896); Baker v. Corbin, 148 Ga. 267, 96 S.E. 428 (1918); Wimpee v. Burt, 148 Ga. 418, 96 S.E. 993 (1918); Mayo v. Bowen, 26 Ga. App. 539, 106 S.E. 596 (1921).

Principle not affected by the existence of legal fraud. Wylly v. Gazan, 69 Ga. 506 (1882).

Omission of "more or less" does not prevent purchaser from claiming apportionment for gross deficiency. Marchman v. Security Loan & Abstract Co., 45 Ga. App. 625, 165 S.E. 884 (1932).

- If a lot of land is sold in a body as containing a certain area "more or less," and both parties have an equal opportunity to judge for themselves, and both act in good faith, a deficiency in the quantity sold will not be apportioned. Walton v. Ramsey, 50 Ga. 618 (1874).

If a purchaser has equal opportunities with the vendor for discovering the contents of a lot sold, the purchaser is bound to avail oneself of those opportunities. If the purchaser fails to do so, and on account of the purchaser's own gross negligence the purchaser is injured, relief will not be granted to the purchaser. Wylly v. Gazan, 69 Ga. 506 (1882).

When vendor is guilty of actual fraud in representing area, the rule is different. Kendall v. Wells, 126 Ga. 343, 55 S.E. 41 (1906); Rosenthal v. Gordon, 142 Ga. 682, 83 S.E. 511 (1914); Black v. Chapman, 33 Ga. App. 509, 126 S.E. 877 (1925).

When a lot of land is sold in a body as containing a certain area, "more or less," and both parties have an equal opportunity to judge for themselves, and both act in good faith, a deficiency in the quantity sold will not be apportioned. But if the vendor, in the consummation of the sale, is guilty of actual fraud in representing the area, the result is different, and the land will be apportioned. Dorsett v. Roberds, 172 Ga. 545, 158 S.E. 236 (1931).

If a lot of land is sold in a body as containing a frontage of a certain number of feet, "more or less," and both parties have equal opportunity to judge for themselves, and both act in good faith, a deficiency in the quantity sold will not be apportioned; aliter where the vendor in the course of the sale is guilty of actual fraud in representing the frontage. Halliburton v. Collier, 75 Ga. App. 316, 43 S.E.2d 339 (1947).

- When a written contract covered the tract as a whole, although it may have contained more than the number of acres specified, parol evidence is not admissible to show that the tract was at a given price per acre, there being no allegation of fraud in the writing and no attempt to reform the allegation. Turner v. Rives, 75 Ga. 606 (1885).

When a bond for title recited that the obligor had sold to the obligee a definitely described lot of land, containing a specified number of acres, "more or less," for a designated sum, parol evidence was not admissible to show that the sale of the land was "by the acre" and not "by the tract." Walker v. Bryant, 112 Ga. 412, 37 S.E. 749 (1900).

- In case the words "more or less" are used, parol evidence is admissible to determine the number of acres. Kirkland v. Brewton, 32 Ga. App. 128, 122 S.E. 814 (1924).

Deception or Fraud

1. Actual Fraud

- Principle recognized by this statute is that if there is actual fraud and deception on the part of the vendor of land sold with the words "more or less," or the deficiency is so great as to be evidence of it, then the deficiency may be apportioned, but not otherwise. Finney v. Morris, 116 Ga. 758, 42 S.E. 1020 (1902) (see O.C.G.A. § 44-5-35).

When the words "more or less" are used, the deficiency must be so great as that a mere comparison of the quantity stated in the description and the actual quantity will suffice to suggest fraud. When these words are not used, this is not so. But the existence of actual fraud or gross mistake amounting to fraud, in order to obtain an apportionment, is necessary in either case. Kendall v. Wells, 126 Ga. 343, 55 S.E. 41 (1906).

- When the vendee desires, in a suit against the vendor in a sale in gross, to claim compensation for a deficiency in quantity, the vendee must allege that in making the contract of sale the vendor was guilty of actual fraud in misrepresenting the quantity. Emlen v. Roper, 133 Ga. 726, 66 S.E. 934 (1910); Williams v. Smith Bros., 135 Ga. 335, 69 S.E. 480 (1910); Kirkland v. Brewton, 32 Ga. App. 128, 122 S.E. 814 (1924).

When land is sold by the tract, and described in the conveyance as so many acres "more or less," a deficiency in the number of acres actually conveyed to the purchaser will not authorize an apportionment in the price agreed to be paid, if the purchaser admits that there was no intentional fraud upon the part of the vendor. Keiley v. Citizens' Sav. Bank & Trust Co., 173 Ga. 11, 159 S.E. 527 (1931).

It is only in cases of actual fraud that a purchaser of land sold by the tract, and described in the deed as so many acres, "more or less," can have the price which the purchaser agreed to pay for the land apportioned because of a deficiency in the number of acres actually conveyed to the purchaser. Hancock v. Nashville Inv. Co., 128 Ga. App. 58, 195 S.E.2d 674 (1973); Waters v. Groover, 138 Ga. App. 276, 226 S.E.2d 74 (1976); McIntyre v. Varner, 156 Ga. App. 529, 275 S.E.2d 90 (1980).

- Sale is by the tract and not by the acre when the specification of the number of acres is only words of description, and to authorize an apportionment for a shortage of acreage, actual fraud must be shown; legal fraud is not sufficient. Kytle v. Collins, 67 Ga. App. 98, 19 S.E.2d 754 (1942).

- In a sale in gross, former Civil Code 1910, § 4622 (see O.C.G.A. § 23-2-51), which defined constructive fraud, was inapplicable, and, standing alone, would not be proper to be given in a charge to the jury. Kirkland v. Brewton, 32 Ga. App. 128, 122 S.E. 814 (1924).

An allegation that the defendant knew that the acreage was short, "or by the exercise of ordinary diligence should have known of such shortage," is a charge of constructive knowledge only, and it requires more than this to make a case of actual fraud. Bivins v. Tucker, 41 Ga. App. 771, 154 S.E. 820 (1930).

Right to apportionment is not assignable by the vendee transferring to the purchaser of the land from the vendee bond for title given by the vendor. Morehead v. Ayers, 136 Ga. 488, 71 S.E. 798 (1911).

Burden is upon the vendee to show that the vendor perpetrated actual fraud upon the vendee, though the amount of the deficiency in acreage is a circumstance to which the jury may look, together with all the other evidence, in determining whether there was actual fraud or not. Milner v. Tyler, 9 Ga. App. 659, 71 S.E. 1123 (1911).

Material representation, falsely made to induce sale, with knowledge of the representation's falsity, is actual fraud. Cates v. Owens, 87 Ga. App. 270, 73 S.E.2d 345 (1952).

- Actual fraud must be alleged and proved, and a material representation falsely made by the vendor to a vendee to induce a sale, and made with the knowledge of the representation's falsity, amounts to actual fraud. Stockburger v. Brooker, 33 Ga. App. 676, 127 S.E. 663 (1925).

An allegation that the vendor's representation at the time of the sale as to the width of the lot was false within the vendor's knowledge, and was acted on by the vendee to the vendee's injury, is a charge of actual fraud. If the vendee was fraudulently induced to buy a lot of width less than the vendor represented it to be, the vendee was entitled to a reduction of the purchase money in the proportion that the deficiency in frontage bore to the frontage bargained for. Halliburton v. Collier, 75 Ga. App. 316, 43 S.E.2d 339 (1947).

- An allegation that representations were made recklessly and negligently and without regard to the truth and for the purpose of effecting the sale and obtaining the petitioner's money shows a sufficient ground of recovery. Bivins v. Tucker, 41 Ga. App. 771, 154 S.E. 820 (1930).

2. Suspicion of Fraud

Suspicion arises out of comparison of quantities and magnitude of deficiency.

- Plaintiff must show both such deficiency in the acreage as will justify a suspicion of fraud and actual fraud. The suspicion must arise out of a comparison of quantities and out of the magnitude of the resulting deficiency. The same facts which justify the suspicion may prove the fraud, prima facie. Estes v. Odom, 91 Ga. 600, 18 S.E. 355 (1893); Kendall v. Wells, 126 Ga. 343, 55 S.E. 41 (1906).

By showing a deficiency, a prima facie case of fraud is made to the extent of raising a suspicion. The same facts which justify the suspicion may prove the fraud, prima facie. The suspicion must arise out of a comparison of quantities and out of the magnitude of the resulting deficiency. Marchman v. Security Loan & Abstract Co., 45 Ga. App. 625, 165 S.E. 884 (1932).

- When the land is purchased with the view of cultivating the land for farming purposes, the suspicion of mistake amounting to fraud as to the acreage would arise more quickly. Marchman v. Security Loan & Abstract Co., 45 Ga. App. 625, 165 S.E. 884 (1932).

3. Previous Knowledge of Land

Knowledge of boundaries not, in itself, notice of acreage contained.

- Knowledge of boundaries need not involve knowledge of acreage or superficial area, and was not, in itself, notice of what the tract contained. Marchman v. Security Loan & Abstract Co., 45 Ga. App. 625, 165 S.E. 884 (1932).

- When the deficiency was more than could be fairly covered by the use of the words "more or less," previous knowledge of the land or of the land's boundaries, would not preclude the vendee from a recovery for fraudulent misrepresentations of quantity. Stockburger v. Brooker, 33 Ga. App. 676, 127 S.E. 663 (1925).

- Previous knowledge of the land or of the land's boundaries would not preclude the vendee from recovering from a fraudulent misrepresentation of quantity, if, without fault on the vendee's part, the vendee was actually deceived and defrauded by the misrepresentation. Marchman v. Security Loan & Abstract Co., 45 Ga. App. 625, 165 S.E. 884 (1932).

Previous knowledge of the land or of the land's boundaries would not preclude the vendee from recovering from fraudulent misrepresentation of quantity, if, without fault on the vendee's part, the vendee was actually deceived and defrauded by the misrepresentation, provided the deficiency was more than could be fairly covered in the given instance by the phrase "more or less." Cates v. Owens, 87 Ga. App. 270, 73 S.E.2d 345 (1952).

- Representation made by a landlord to a tenant as to the number of acres in a tract does not constitute fraud if the tenant had equal opportunity with the landlord of ascertaining the number of acres in the tract, and if the landlord did not by trick or artifice prevent the tenant from ascertaining the size of the tract. The fact that the tenant had no way of measuring the tract or no opportunity of measuring the tract does not show that the tenant did not have an equal opportunity with the landlord of ascertaining the tract's size. Bailey v. Tifton Buick Co., 44 Ga. App. 652, 162 S.E. 646 (1932).

4. Jury Questions

Question of whether sale by tract or by acre left to jury.

- When the deed in question is subject to two possible interpretations, i.e., (1) the sale was a sale by the tract; or (2) the sale was a sale by the acre, and a jury could have found either, this question should have been left to the jury, and the trial court was not authorized to decide the question as to whether or not the deficiency was not so gross as to justify the suspicion of willful deception, or mistake amounting to fraud. Pennington v. Wynne, 149 Ga. App. 151, 253 S.E.2d 830 (1979).

Whether property is sold by the tract, or is sold by the acre so as to entitle the purchaser to an apportionment of the price for deficiency of acreage, is usually a jury question. Boswell v. Bryans, 159 Ga. App. 724, 285 S.E.2d 74 (1981).

- It is a question for the jury whether, under all the circumstances of the particular case, the deficiency is so gross as to justify the suspicion of fraud, in which event the vendee would be entitled to an apportionment of the price according to relative value. James v. Elliott, 44 Ga. 237 (1871); Bryan v. Yates, 7 Ga. App. 712, 67 S.E. 1048 (1910); Mayo v. Bowen, 26 Ga. App. 539, 106 S.E. 596 (1921).

It is a question of fact to be decided by a jury, on all the circumstances of the particular case, whether the deficiency in a given instance is so gross as to raise a suspicion of mistake amounting to fraud. Marchman v. Security Loan & Abstract Co., 45 Ga. App. 625, 165 S.E. 884 (1932).

Exception may arise in extraordinary cases which afford no room for difference of opinion. Perkins Mfg. Co. v. Williams, 98 Ga. 388, 25 S.E. 556 (1896).

Vendee may demand either rescission or apportionment of price. If the vendee preferred to keep the land and have compensation for the deficiency by reducing the purchase price by the amount sustained in consequence of the vendor's fraud, the vendee was entitled, upon a tender of the balance of the purchase money, to go into a court of equity and insist upon specific performance. Seegar v. Smith, 78 Ga. 616, 3 S.E. 613 (1887).

- In actions for recovery for deficiency in land, the measure of damages generally is the pro rata part of the purchase money paid or to be paid for deficiency with interest. It is not less than this. However, if a part of such property may be of greater value than other portions, this is not necessarily a fixed rule. Halliburton v. Collier, 75 Ga. App. 316, 43 S.E.2d 339 (1947).

- When the vendee continued in unqualified possession and use of the property until and including the date of the trial, approximately two years from the time of discovery of the fraud, there is no error in holding that the right of rescission was waived, and directing a verdict in favor of the plaintiff and against the plea. Carson v. Blair, 31 Ga. App. 60, 121 S.E. 517 (1923), cert. denied, 31 Ga. App. 811, S.E. (1924).

6. Illustrative Cases

Allegation sufficient to charge actual fraud, and to submit question of deficiency to jury.

- When it was alleged that the defendant, with the intent to defraud the plaintiffs, represented to the plaintiffs that a certain tract of land which the defendant offered to sell to the plaintiffs, and which the defendant did sell to the plaintiffs, contained 109 acres, when the defendant knew the defendant did not own more than half of the acreage represented, and when it was alleged that the plaintiffs, believing and relying on the defendant's false representations as to the acreage of the tract, purchased the land from the defendant, which was described as containing 109 acres, more or less, but which in fact contained only 49.9 acres, these allegations were sufficient to charge the defendant with actual fraud, and the deficiency in quantity was so gross as to authorize submission of the question of fraud to a jury. Cates v. Owens, 87 Ga. App. 270, 73 S.E.2d 345 (1952).

- When a deed recited that the number of acres conveyed was 102 1/2, "more or less," and there was a proved deficiency of approximately 41 acres, this deficiency was so gross as to warrant the jury in believing that there was a mistake amounting to fraud. Owens v. Durham, 9 Ga. App. 179, 70 S.E. 989 (1911).

When the owner of improved farm land shows the land to one who desires to purchase the land for farming purposes, and the owner represents that the land contains 75 acres, points out two of the boundary lines, which are exceedingly long, and leads the prospective purchaser to believe that the other boundary lines are correspondingly long, when in fact the owner knows that the land does not contain 75 acres, and makes such representations and points out such boundaries for the purpose of willfully and knowingly deceiving the prospective purchaser, and does so deceive the purchaser, and the latter, relying upon such representations, purchases the land, when the tract in fact contains only about 44 acres, the purchaser may obtain an apportionment of the purchase price on account of fraud. Black v. Chapman, 33 Ga. App. 509, 126 S.E. 877 (1925).